HRZI and National Disability Insurance Agency
[2023] AATA 481
•24 March 2023
HRZI and National Disability Insurance Agency [2023] AATA 481 (24 March 2023)
Division:NDIS DIVISION
File Number(s): 2020/5018
Re:HRZI
APPLICANT
National Disability Insurance AgencyAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:24 March 2023
Place:Canberra
The reconsideration decision dated 31 January 2023 is affirmed.
................[SGD].............................
Mr S. Webb, Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – participant – reasonable and necessary supports – grant of access as a participant qualified by disability – disability attributable to impairment – ongoing relevance of disability requirement or early intervention requirement to status as a participant – reasonable and necessary supports in relation to disability – supports not limited to accepted impairment – ‘participant’s impairment’ defined for purposes of recovery provisions – narrow construction of ‘disability’ and ‘supports’ not justified – requirement for probative materials – specialist disability accommodation – short term accommodation – transport – private business start-up – in vitro fertilization – sex therapist and assistive devices – legal supports – additional supports not established to be reasonable and necessary – plan management arrangement – decision affirmed
JURISDICTION – statement of participant supports – approved supports confirmed by reviewer – jurisdiction to review all matters before reviewer – review not confined to matters in dispute between the parties – reasonable and necessary supports not limited to impairments which meet disability requirements – jurisdiction to consider supports raised in proceedings
PRACTICE AND PROCEDURE – fact finding to be based on probative material – Tribunal not bound by party concessions – practical approach consistent with statutory objectives – requirement for satisfaction on available materials – discretion to act on partial agreement in proceeding in respect of previously approved supports – consideration of power and appropriateness – appropriate to act on partial agreement
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 25, 42C, 42D, 43
National Disability Insurance Scheme Act 2013, ss 3, 4, 9, 13, 14, 17A, 20, 21, 23, 24, 25, 26, 33, 34, 35, 37, 39, 43, 44, 46, 99, 100, 103, 106, 107, 109, 111, 209
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022, Sched 1, Sched 2
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme (Plan Management) Rules 2013
National Disability Insurance Scheme (Special Disability Accommodation) Rules 2020National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Goodliff and National Disability Insurance Agency [2021] AATA 5022
HRZI v National Disability Insurance Agency [2021] AATA 4029
Legal Services Board v Gillespie-Jones [2013] HCA 35
McGarrigle v National Disability Insurance Agency [2017] FCA 308McLaughlin v National Disability Insurance Agency [2021] AATA 496
Minister for Resources & Anor v Dover Fisheries Pty Ltd [1933] FCA 366
Mulligan v National Disability Insurance Scheme [2015] FCA 544
National Disability Insurance Scheme v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
National Disability Insurance Scheme v WRMF [2020] FCAFCA 79
New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act [2016] HCA 50
Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
QDKH v National Disability Insurance Scheme [2021] FCAFC 189
Rehabilitation Medicine Australia Pty Ltd v N I B Health Funds Ltd (No 2) [2020] FCA 1761
VGCP and National Disability Insurance Scheme [2020] AATA 5107Secondary Materials
Productivity Commission (Cth), Disability Care and Support, Report No 54 (2011)REASONS FOR DECISION
Mr S. Webb, Member
24 March 2023
HRZI is a participant in the National Disability Insurance Scheme (NDIS). The National Disability Insurance Agency (Agency) made a decision to approve a Statement of Participant Supports (SPS) setting out reasonable and necessary supports that would be funded under the National Disability Insurance Scheme Act 2013 (NDIS Act). HRZI was not satisfied with the decision and requested internal review. The internal review decision maker confirmed the original decision. HRZI applied to the Tribunal for review of this decision.
The resulting proceedings have been protracted and it has been necessary to deal with several interlocutory issues.
At the hearing, issues arose which necessitated allowance of further time for the parties to provide and respond to further materials and submissions. In the period following the hearing, each party gave the Tribunal detailed written materials and submissions, the substance of which I will deal with shortly. Before doing so, it is helpful to set out the facts and to address aspects of the legislation.
FACTS
HRZI maintains she has experienced abuse, institutionalisation and trauma.[1] Her mental health has been affected.[2] She was born in 1970 and had three children, who were removed from her care.[3] She has endured periods of social isolation and homelessness.[4]
[1] Exhibit 1, A1, page 2, A12 and A17.
[2] Exhibit 3, Tab 5, pages 1 and 3; Exhibit 4.
[3] Ibid, A6-A11, A20, A21 and A22.
[4] Ibid, A17.
I understand HRZI was paid disability support pension prior to becoming a participant in the NDIS. Documentary evidence of this has not been given to the Tribunal.
On 5 December 2016, HRZI lodged an Access Request Form for the NDIS.[5] The form attached a medical certificate by Dr MacIver (then treating general practitioner), dated 19 October 2016, stating:
[HRZI’s] medical conditions remain unchanged. Her conditions are as follows.
Complex PTSD
Chronic anxiety
Mild Brain Injury
Chronic Pain Syndrome
[5] Exhibit 4.
On Dr MacIver’s medical certificate dated 28 August 2008, HRZI also suffered at that time from petit mal and myoclonic epilepsy.[6]
[6] Exhibit 1, page 43.
On 28 November 2016, Ann Corver, HRZI’s then support facilitator, completed a Supplementary Evidence of Disability form in which she refers to HRZI:
(a)experiencing mental blocks;
(b)sometimes misunderstanding written communication;
(c)experiencing difficulty coping with feelings and emotions, particularly in relation to relationships; and
(d)experiencing difficulty with her memory: sometimes her memory is good, at other times not and she benefits from one-on-one support.[7]
[7] Exhibit 4, Supplementary evidence of disability form, 28 November 2016, pages 5-6.
On 19 December 2016, HRZI was granted access to the NDIS. Documentary evidence of an access decision under s 20 of the NDIS Act has not been given to the Tribunal. The Agency informed me no access decision was made as HRZI was in receipt of a disability support pension and she was transferred into the NDIS at that time. The NDIA provided documents containing the following information:
…
Primary Disability: M45 – Ankylosing Spondylitis.
Date of Onset:
How was the Access Request received: Mail
Access Decision: Access Granted
Access Reason: Disability Met
Date of Access Decision: 19.12.2016
…[8]
[8] ST4, folio 164.
The NDIA’s interaction records describe HRZI’s disability in the following terms:
Disability Type: Primary: M45 – Ankylosing Spondylitis; Secondary: F99-Other psychosocial disorders, F41-Other anxiety disorders, M95-Other physical, T90- Traumatic brain injury[9]
[9] T5, folio 21
As a participant in the NDIS, HRZI was provided with a plan, comprising her Statement of Goals and Aspirations (SGA) and a Statement of Participant Supports (SPS) approved by a delegate of the CEO of the NDIA.
The earliest Plan provided to the Tribunal came into effect on 17 July 2019 (2019 Plan).[10] The approved SPS in this Plan made provision for:
(a)$151,815.04 in funded supports, namely[11]:
[10] Exhibit 1, pages 17-26.
[11] Ibid, pages 23-25.
Core Supports
Budget
Core supports to assist with daily activities and community participation. Support may include low-risk low-cost assistive technology, assistance with self-care, assistance with domestic tasks, and support to access the community. Funding may be used flexibly between these supports.
My Core Supports funding will be:
- $122,179.78 Self-managed
$122,179.78
Transport
Level 3 transport to support studying or working for over 15 hours/week.
My Transport funding will be: paid as fortnightly instalments into my nominated bank account.
$3,567.00
Capacity Building Supports
Budget
Improved Daily Living (CB Daily Activity)
…
- $14,457.36 Self-managed
$14,457.36
Improved Health and Wellbeing (CB Health and Wellbeing)
…
- $1,804.90 Self-managed
$1,804.90
Support Coordination
…
- $9,806.00 NDIA-managed
- Level 2: Coordination Of Supports
$9,806.00
(b)a Plan review date of 16 July 2020.[12]
[12] Ibid, page 17.
On 24 June 2020, a new Plan (2020 Plan) came into effect, replacing the 2019 Plan. The 2020 Plan arose from plan review processes. HRZI provided an SGA and a delegate of the CEO approved an SPS, both of which are reflected in the terms of the 2020 Plan. The approved SPS included:
(a)$65,890.10 in funded supports, namely[13]:
[13] T10, folios 41-43.
Core Supports
Budget
Core supports to assist with daily activities and community participation. Funding may be used flexibly between these supports. Supports are not intended to be used for crisis accommodation.
Flexible support to explore and participate in community based activities of interest and to develop, build and maintain friendships. Support is not intended to cover activity costs
My Core Supports funding will be:
- $51,007.29 Plan-managed
$51,007.29
Transport
To enable community participation
My Transport funding will be: paid as fortnightly instalments into my nominated bank account.
$900.00
Capacity Building Supports
Budget
Improved Life Choices (CB Choice and Control)
Plan Management And Financial Capacity Building – Set Up Costs
Plan Management - Financial Administration
My Stated Supports funding will be:
- $227.53 NDIA-managed
Plan Management And Financial Capacity Building – Set Up Costs
- $613.68 NDIA-managed
Plan Management - Financial Administration
$841.21
Improved Daily Living (CB Daily Activity)
For ongoing therapy supports. 10 hours for a functional assessment to be conducted
Support to enable progress reports to be sourced from current therapists.
My Improved Daily Living funding will be:
- $6,401.70 Plan-managed
$6,401.70
Improved Health and Wellbeing (CB Health and Wellbeing)
Includes personal training and exercise physiology supports.
My Improved Health and Wellbeing funding will be:
- $1,8836.90 Plan-managed
$1,836.90
Support Coordination
…
- $4,903.00 NDIA-managed
- Level 2: Coordination Of Supports
$4,903.00
(b)a Plan review date of 23 December 2020.[14]
[14] Ibid, folio 35.
On 24 June 2020, HRZI requested internal review of the CEO’s decision to approve an SPS in the 2020 Plan.[15] At that time, HRZI was seeking like for like funding under the 2019 Plan and the following additional supports and management arrangements:
[15] T4 and T5.
(a)a stereo for her car;
(b)a sewing machine and overlocker;
(c)a lap top computer;
(d)an upgraded car;
(e)repairs to her motor home;
(f)assistance with emergency housing as she was homeless;
(g)assistance to set up a Rockabilly dance café and group;
(h)a personal trainer;
(i)a dietitian; and
(j)self-management of funding for supports.[16]
[16] T3.
On 20 August 2020, an internal review decision was made under s 100(6) of the NDIS Act. The decision maker stated:
The outcome you sought from the internal review was:
1. Your plan to include an increase to the core support, daily activities funding for “Short term accommodation”. You said it would cost $1500 per week, but did not provide any information about how often, the amount of days, of which days of the week that you needed the support.
2. Your plan to change to a 12 month plan duration instead of 6 month plan duration
3. Your plan to be self-managed plan instead of plan managed funding
…
I have decided that the original decision is correct…[17]
[17] T1A, folio 1-2.
On 20 August 2020, HRZI applied for review by the Tribunal.[18]
[18] T1.
By request of the parties the matter was remitted under s 42D(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) for reconsideration on five occasions. In each case, the decision maker decided to vary the plan review or reassessment date but no change was made to the approved SPS. In the circumstances where HRZI was not satisfied with the reconsideration decision, by operation of s 42D(3) of the AAT Act, the application is taken to be an application for review of the internal review decision as varied by the reconsideration decision. Consequently, the decision presently under review is taken to be the reconsideration decision made on 31 January 2023 pursuant to the remittal order of the Tribunal on 30 January 2023.
This decision, in effect, extends approval of reasonable and necessary supports in the SPS for the period from 31 January 2023 to 31 January 2024. It provides for:
(a)$130,293.53 in funded supports, namely[19]:
[19] T10, folios 41-43.
Core Supports
Budget
Funding in the Core: Daily Activities budget ($74,120.82) has been allocated for flexible support within the home, which may include, but is not limited to Assistance with personal care and assistance with other activities of daily living. Flexible funding within this budget to allow maximum choice and control.
Funding in the Core: Social Community and Civic Participation budget ($27,893.76) has been allocated for flexible support to explore and participate in community-based activities of interest and to develop, build and maintain friendships. Flexible funding within this budget to allow maximum choice and control.
My Core Supports funding will be:
- $102,014.58 Plan-managed
$102,014.58
Transport
This funding is a contribution towards any transport related costs you incur during the plan period and to assist with the costs of transport to work, study, or community activities.
My Transport funding will be: paid as fortnightly instalments into my nominated bank account.
$1,800.00
Capacity Building Supports
Budget
Improved Life Choices (CB Choice and Control)
A one-off (per plan) establishment fee for setting up of the financial management arrangements for managing of funding of supports and monthly fees for the ongoing maintenance of the financial management arrangements for managing of funding for supports.
My Stated Supports funding will be:
- $227.53 NDIA-managed
Plan Management And Financial Capacity Building – Set Up Costs
- $1,253.40 NDIA-managed
Plan Management - Financial Administration
$1,485.75
Improved Daily Living (CB Daily Activity)
Funding for support and assistance from Allied Health Professionals for skill development, training, assessment and therapy ($11,639.40). Allied Health Professional will work closely with you to increase independence. It is expected that these supports will include progress reports on outcomes of current goals/objectives and ongoing functional needs at Scheduled Review.
My Improved Daily Living funding will be:
- $11,639.40 Plan-managed
$11,639.40
Improved Health and Wellbeing (CB Health and Wellbeing)
Funding for an allied health professional or therapist to assess and provide support in assisting you to meet your goals of mobility and strength. A Progress Report is required at the end of this plan if further supports are required in this area.
My Improved Health and Wellbeing funding will be:
- $3,339.80 Plan-managed
$3,339.80
Support Coordination
…
- $10,014.00 NDIA-managed
- Level 2: Coordination Of Supports
$10,014.00
(b)a Plan review date of 31 January 2024.[20]
[20] Ibid, folio 35.
In a Statement of Lived Experience dated 6 April 2021, HRZI stated:
I am a 51-year-old first generation Australia women, of Dutch and Hungarian ancestry, with the following conditions:
- Spondylosis, degeneration of the spine.
- Endplate sclerosis.
- Teitze Syndrome, Sternum is painful to touch. If I overuse the upper part of my body it will cause inflammation between thoracic and sternum causing severe pain, feelings of heart attack.
- Enthesopathy, tendons and ligaments stick to the bone, causing pain and painful spasms.
- Fibromyalgia
- Chronic pain
- Acute pain flare ups lasting up to a couple of weeks.
- Complex regional pain syndrome
- Vision impairment. Require glasses. At risk of going blind, being monitored by optometrist. Spatial awareness and depth perception impacted due to trauma, MTBI, nerve damage and fatigue.
- Partial hearing impairment
- Vestibular migraines
- Complex Post Traumatic Stress Injury (CPTSI), including, but not limited to, severe anxiety, hypervigilance, insomnia,shock and depression
- Mild traumatic brain injury, concussion syndrome.
- RSI, right arm.
- Whiplash right side.
- Compressed nerves.
- Nerve damage
- Musculoskeletal degeneration and injuries.
- Burns injuries, 2nd degree to 10% of body, lower abdomen, upper and inner right and left thighs. Skin grafts with fragile skin, with ongoing nerve pain, incontinence and fatigue.
- Lung disease, COPD, asthma and emphysema. Borderline oxygen levels.
- Food allergies and intolerances.
- Sensory impairment.
- Additional Undiagnosed severe stomach and right-side ear pain
- Severe stomach pain associated with spine injuries and degeneration.
- Hips seize up, if I don’t move/exercise or if I do too much.
- Labral tear both hips, right more severe. Additional hip diagnosis.
- Constant painful spasms although has decreased with assistance of regular massage, physio, osteo and hydrotherapy. Acute episodes of severe painful spasms. (Under investigation for incomplete spinal cord injury and mild spacticity)
…
Due to the above conditions and their deterioration, my functional capacity is severely limited, especially with regards to my physical mobility, communication, social interaction, and economic participation.
My need for more support
Currently, I do not have adequate support from the NDIS to achieve my goals, which include owning a home that is safe and accessible, taking care of my grandchildren in my own home, starting my own business, being active in my community, and having another child.
Due to the lack of support, I am now living alone in a property that does not meet my disability requirements. This property presents a constant risk of danger to my safety and well-being.
I am also greatly diminished in my capacity to work, attend important appointments, maintain relationships with family, and to participate adequately in community life.
In addition, I feel that I have been discriminated against with regards to my capacity to determine my goals and manage my own NDIS Plan.
I need and want more social inclusion. I feel I have to many barriers preventing me from being able to live a normal inclusive life.
Due to the lack of appropriate disability support, some of my disabilities are deteriorating even further.
List of supports that I am seeking
To achieve my NDIS goals, I am seeking the following supports, on top of the existing supports in my Plan:
1. Specialist Disability Accommodation (SDA), whereby I can have ownership of a property designed by me with modifications to support my disabilities and needs for now and into the future. As self sufficient, off grid and organic as possible.
2. Increase in core funding for Short-Term Accommodation (STA)
3. An increase in transport funding from Level 1 to Level 3 or specialised transport funding.
4. Increase in core funding and capacity building funding to help me to start my own business
5. Funding for IVF
6. Self-management of my core support/partial self/plan managed capacity
7. An increase in the duration of my NDIS Plan to 12 -24 months (from 6 months)
8. Sex therapist/worker/AT
9. Legal support[21]
[21] Exhibit 1, Applicant’s Statement of Lived Experience, 6 April 2021, pages 1-3.
On 14 December 2021, Kate Black, a registered occupational therapist, produced an Occupational Therapy Functional Assessment Report.[22] Ms Black discussed HRZI’s report of disabling symptoms, including pain in her spine, neck, right arm, hips, stomach and chest, and whole body spasming, as well as multiple medical conditions, including spondylosis at the T12/L1 level, RSI, Tietze Syndrome, Enthesopathy, fibromyalgia and complex regional pain syndrome.[23] Ms Black referred to HRZI being easily triggered in regard to her trauma.
[22] Exhibit 1, A18.
[23] Ibid, pages 53-54.
On 17 December 2021, Oliver Ransan-Elliott, a physiotherapist, reported:
[HRZI] has some significant physical impairments…
Her right hip is impacted by several pathological conditions. We accessed her MRI today and found that there was also some osteoarthritis in both hips as well as bilateral sacroiliitis, hamstring and glute medius tendinopathy….
…
She also has neck and right sided arm pain which is worse at night…
…
At a minimum she will need each area treated once per week – one session for her hip (although it is two areas of her hip that need attention) and one for her neck and arm. This is not even figuring in her other areas of pain. Realistically this amount of treatment is only for managing the pain and for brief functional improvements. For her to make progress we need an additional 2 strength classes per week, optimally 3.
I suspect given her symptoms at night as well as Clowards referral she may have disc issues at C5/6/7. This may need to be addressed surgically at a later date.[24]
[24] Ibid, A19, pages 70-71.
On 1 February 2022, Patricia Ortiz, an osteopath, reported:
[HRZI] presented for the first time at the clinic on 15 /05/2021 due to constant pain related to musculoskeletal issues…
[HRZI] constantly complain of pain on RHS of her shoulders, headaches, abdominal pain, thoracis and lumbar region pain, and hip joint pain at the RHS. I have been treating [HRZI] regularly using a gentle approach and patient education, to which she responds well, and it helps to decrease her pain levels and increase range of motion. It also has a positive effect on [HRZI] wellbeing and emotional state.[25]
[25] Ibid, A23, page 87.
On 10 April 2022, HRZI provided a document setting out supports she was claiming, as follows:
CORE –
Transport:
Own vehicle repaired
Hire car when required
Taxi vouchers
Security
Daily Living:
Life coach – Personal trainer/motivator
Exercise physiologist
Physio – swimming exercise; pull buoy and kick board; bike; trampoline; kayak
Dietitian (Hit 10)
Exercise physiologist
Support, assistance, co-ordination; form completion – study
Pain management Clinic
Write Own Story – Counselling/healing/life coach
Emergency Fund – Credit Card to pay upfront > reimbursements
CAPITAL –
Housing – Long term/Emergency
Transport – upgrade to fully facilitate necessities – cooking (diet) – sleeping – heat/cool – personal hygiene – Improved daily living facilities will assist with health and wellbeing – improved eating (allergies and intolerances)/sleeping/hygiene/comfort/safety
Immediate 5000 for motor-home until alternative can be achieved
Motor vehicle required for maintaining appointments
Stereo in car; music; grounding; preparation for dance classes
CAPACITY BUILDING –
Choice and control:
Self management – Capacity building to get partly self managed now – fully self managed in 12 months
Have a child
Work:
Professional development for business
Accountant/Nexus
Business plan and budget/Nexus
Small business course
Zero book keeping program – one registration
Registrations and set up
Lap top – programs
Advertising – brochures – cards etc
Study PHD in movement and sound; National Library – ‘Petharic’ Reading Room booking
Research history of Rockabilly
Archiving of paperwork
Dance evolving – Kepowera Brazilian dance
Sewing machine/overlocker – design and make own uniforms
Uniforms to starts - $2500
Health & Wellbeing:
Quest for life – PTSD Course – Petrea King
CedarVale – 12 day retreat
Speech therapy
Neurological therapy – memory
Alanon
Physio therapy - gym
Weight loss – Dietician – to assist with pain reduction and gastro issues
Occupational Therapist
Lifelong Learning:
Singing and dance lessons
Complete Yoga Instructor Course – complete assignments
Aqua Yoga – Swim instructor course
Complete floristry course
Master RockaBilly
Professional development; yoga and dance
Social and Community Participation:
Service dog – purchase – training – registration
Courses; pottery; glass; crochet; Yoga; martial arts; craft
Education Goals:
Self image – assertiveness – esteem – confidence – trauma/memory – difficulties – concentration - focus[26]
[26] Exhibit 1, pages 11-13.
On 28 April 2022, HRZI sought additional support funding for plan management and support coordinator training.
On 15 May 2022, HRZI sought back payment of transport funding on the basis the 2020 Plan included Level 1 transport funding rather than the Level 3 Transport funding provided for in the 2019 Plan. HRZI asserts in 2018 funding was provided for her own vehicle, including repairs and the 2020 Plan was supposed to replicate the 2019 Plan on a like for like basis. HRZI raised similar issues on 18 May 2022 in respect of an alleged agreement with NDIA planners involved in the development of the 2020 Plan in respect of a 2 year Covid roll over.
Subsequently, on 22 June 2022, HRZI informed the Tribunal her request for a sex therapist was not pressed but she would be seeking funding for adaptive technology needed for me to be able to have sex again. In the hearing, HRZI explained she is seeking support funding for cushions and aids to support her body in order to minimise hip pain and spinal spasms.
On 15 July 2022, HRZI sent an email to the Tribunal and the NDIA in respect of additional impairments and medical conditions, namely:
Vision
Partial deafness right ear
Vestibular migraines
Visual vertigo
Motion sickness susceptibility
She attached a report of Dr Rajagopal of the Canberra Dizziness Clinic. The doctor diagnosed vestibular migraine, visual vertigo, anxiety disorder and motion sickness susceptibility. He referred to an incomplete past medical history, including adrenal adenoma, hyponatraemia, chronic pain, post-traumatic stress disorder, nerve pain – right, and back pain.[27]
[27] Exhibit 3, Tab 5, pages 1 and 3.
On 19 July 2022, HRZI made written submissions in support of funding for the following supports:
(a)Special Disability Accommodation (SDA), whereby I can have ownership of a property designed by me with modifications to support my disabilities and needs for now and into the future.
(b)Increase in core funding for Short-Term Accommodation (STA).
(c)Increase in transport funding from Level 1 to Level 3 or specialist transport funding.
(d)Increase in core funding or capacity building funding to help me start my own business.
(e)Funding for building and maintaining a healthy relationship and having a child.
(f)Self-management of my core support/partial self/plan managed capacity.
(g)An increase in the duration of my NDIS Plan to 12-24 months (from 6 months).
(h)In combination with (e), increased physiotherapy, other therapy, and adaptive technology funding to build capacity and function in order to engage in a sexual relationship, and to improve health in order to have a child.
(i)Legal support in respect of ongoing claims and possible future legal cases for compensation.
(j)Support worker assistance to manage organisation and administration tasks.
On 19 July 2022, Dr Andrew French certified HRZI suffers from chronic obstructive pulmonary disease (COPD) for which she takes inhalant medications.
On 3 August 2022, Madelaine Breust, a physiotherapist, produced a report following an initial assessment of HRZI on 27 July 2022. Ms Breust reported further assessment would be required and her main assessment findings were:
-Impaired vestibular system when challenged with walking and head movements
-Impaired ocular motor control with gaze stability testing
-Hypermobility through cervical, thoracic and lumbar spine
-Tight and tense through shoulder musculature
-Reduced arch support through feet [28]
[28] Report by Madelaine Breust, NeuroSpace, 3 August 2022 at page 4.
…
Summary of Provider Recommendations for a 12-Month Duration: Improved Daily Living Support Category 3.15:
Physiotherapy: 39.5 hours @ $193.99 = $7662.61
• 24 x 45 minute physiotherapy sessions in clinic @ $145.49/session (12 week intensive) (18hrs)
• 40 x 30 minute physiotherapy sessions in clinic @ $97/session (20hrs)
• 1 x 1.5 hours non-face to face support provision (e.g. report writing)
Improved Health and wellbeing support category 3 .12:
Exercise Physiology: 42.5 hours @ $166.99 = $7097.08
• 2 x 60 minute exercise physiology sessions @ $166.99/session (initial assessments)
• 52 x 45 minute exercise physiology sessions @ $125.24/session (weekly supported exercise) (39hrs)
• 1 x 1.5 hours non-face to face support provision (e.g. report writing)
8. Other Support Recommendations
[HRZI] requires sufficient funding to continue to access regular ongoing massage therapy, psychology, speech therapy, occupational therapy, osteopath and exercise physiology. [HRZI] requires a referral to a Neurologist for review of her pain and neurological symptoms.
LEGISLATIVE SCHEME
The NDIS Act establishes the NDIS under which supports and services may be provided or funded for people with disabilities. The NDIS Act provides for the determination of a person’s eligibility to become a participant in the NDIS on the basis of access criteria and, where a person becomes a participant, for the making of a plan, setting out the person’s SGA and the SPS approved by the CEO.
The NDIS Act was amended in 2022 with the passage of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Amendment Act). Under s 67 and s 68, Schedule 1 of the Amendment Act, the amended review provisions do not apply to Tribunal reviews which were already then on foot and, by operation of s 54(1) in Schedule 2 and s 55(1) in Schedule 3 of the Amendment Act, the amendments apply to an access request made on or after commencement. For this reason, this review is to be decided under the applicable provisions of the NDIS Act in effect prior to commencement of the Amendment Act provisions. Nevertheless, as will appear, it is helpful to consider provisions of the Amendment Act and related extrinsic materials when construing relevant sections in Part 1 and Part 2 of Chapter 3.
The NDIS Act sets out a framework of objectives (s 3) and principles (s 4, s 17A and s 31) within which provisions for the grant of access to the NDIS and the provision or funding of supports are to be construed.[29]
[29] National Disability Insurance Scheme v WRMF [2020] FCAFC 79 at [138]-[139]
The objectives are set out in s 3 and relevantly include:
1. The objectives of this Act are to:
…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
…
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
…
(3) In giving effect to the objects of the Act, regard is to be had to:
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c) the broad context of disability reform provided for in:
(i) the National Disability Strategy 2010‑2020 as endorsed by COAG on 13 February 2011; and
(ii) the Carer Recognition Act 2010; and
(d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
General principles guiding actions under the NDIS Act are set out in s 4, which relevantly provides:
…
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
…
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
…
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
The principles set out in s 4 of the NDIS Act are supplemented by principles set out in s 17A, which apply to Chapter 3 and relevantly include:
…
(3) The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives; and
(c) support people with disability to participate in, and contribute to, social and economic life.
…
Principles relating to participant’s plans under Part 2 of Chapter 3 are set out in s 31.
In practical terms, where a person requests access to the NDIS, s 20 requires the CEO to do one of two things:
(1) If a person (the prospective participant) makes an access request, the CEO must:
(a) decide whether or not the prospective participant meets the access criteria; or
(b) make one or more requests under subsection 26(1).
The access criteria are set out in s 21:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
(2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following:
(b) the person:
(i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and
(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and
(iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;
(c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports;
(d) the person satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Subsection 26(1) relates to requests the CEO may make for the prospective participant to provide further information that is reasonably necessary to determine if the person meets the access criteria, or to undergo an assessment or an examination.
The disability requirements are set out in s 24 and the early intervention requirements are set out in s 25:
24 Disability requirements
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition[30]; and
[30] This paragraph was amended in the following terms: the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities[31]:
[31] This paragraph was amended in the following terms: the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities.
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.[32]
[32] The new s24(3) was introduced by amendment in the following terms: For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent;[33] or
[33] This paragraph was amended in the following terms: has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent.
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
A person becomes a participant in the NDIS when the CEO decides they meet the access criteria (s 28(1)). The person’s status as a participant ceases in the circumstances set out in s 29, including where the CEO revokes their status under the terms of s 30:
(1) The CEO may revoke a person’s status as a participant in the National Disability Insurance Scheme if:
(a) the CEO is satisfied that the person does not meet the residence requirements (see section 23); or
(b) the CEO is satisfied that the person does not meet at least one of the following:
(i) the disability requirements (see section 24);
(ii) the early intervention requirements (see section 25).
Where a person becomes a participant in the NDIS, under Part 2 of Chapter 3, the CEO must facilitate the preparation of a plan for the participant by which supports are to be provided, funded and managed. A plan has two essential components which, under s 37(1), are instrumental in the plan coming into effect, namely the participant’s SGA and the SPS approved by the CEO.
The matters to be included in a participant’s plan are set out in s 33, relevantly:
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
…
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
…
For the purposes of s 33(5)(c), the CEO must be satisfied of the matters set out in s 34:
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
The NDIA must comply with an approved SPS (s 39) and a participant (or a person on behalf of a participant) who receives funding under the NDIS must spend the money in accordance with the person’s plan (s 46). Provisions for the management of funding for supports in a participant’s plan are set out in Division 3, Part 2, Chapter 3.
It is within this legislative framework the ambit of ‘supports’ which may be provided or funded must be considered. The word ‘supports’ is defined inclusively in s 9(1) to include general supports. The term general support is given meaning in s 13:
(1) The Agency may provide general supports to, or in relation to, people with disability who are not participants.
Note: Chapter 3 deals with the provision of general supports to, or in relation to, participants.
(2) In this Act:
general support means:
(a) a service provided by the Agency to a person; or
(b) an activity engaged in by the Agency in relation to a person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.
Provision is made in s 17, 27, s 34(2), s 35 and s 209 for the making of rules prescribing matters for and in relation to Chapter 3 of the NDIS Act. Rules of present relevance have been promulgated, including the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules); the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules); the National Disability Insurance Scheme (Special Disability Accommodation) Rules 2020 (SDA Rules); and the National Disability Insurance Scheme (Plan Management) Rules 2013 (Management Rules). In particular, the Supports Rules provide that:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3 The following supports will not be provided or funded under the NDIS:(a) a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support would be provided;
(b) a support that consists of income replacement.
ISSUES
The substantive issue to be decided is the correct or preferable SPS for HRZI, including the reasonable and necessary supports that will be provided or funded, as well as the appropriate plan management arrangements and reassessment date.
Before dealing with the substantive issue, it is necessary to address two important preliminary issues ventilated during the hearing and in the submissions of the parties. The first relates to the scope of matters to be decided by the Tribunal in exercise of the jurisdiction conferred upon it (scope issue). The second is whether the funding of supports under s 33 of the NDIS Act is limited to impairments which meet the disability requirements under s 24, on which her eligibility for access to the NDIS was decided (nexus issue).
PRELIMINARY ISSUES
Scope issue
A question of the Tribunal’s jurisdiction arose in the course of the proceedings, relating to HRZI’s claims for supports not previously considered by the NDIA. The matter was dealt with in a written ruling.[34] Following QDKH v National Disability Insurance Agency (QDKH),[35] the Tribunal has jurisdiction to determine afresh reasonable and necessary supports in HRZI’s case, including the supports raised in the course of these proceedings.
[34] HRZI v National Disability Insurance Agency [2021] AATA 4029.
[35] [2021] FCAFC 189.
The present issue has a different complexion. It is whether the Tribunal’s review is properly confined to contested supports HRZI is seeking, which were not approved or not considered by the reviewer under s 100(6) of the NDIS Act (or by the CEO under s 33(2)), without consideration or determination of uncontested supports which were previously approved in the decision under review.
At hearing, the NDIA argued, there is no scope for the Tribunal to review uncontested supports (or other elements) included in an approved SPS, as to do so would unnecessarily put the parties to proof of each and every element the SPS contains. HRZI largely agreed with the NDIA on this point. In subsequent written submissions, the NDIA appears to accept, on review of an SPS approval decision under s 100(6) of the NDIS Act, the Tribunal has jurisdiction and power to determine all elements of an SPS. Nonetheless, the NDIA asserts the internal review decision is the correct or preferable decision and notes there has been no substantive review of the Applicant’s supports since she sought review.[36] This is despite the matter being remitted by the Tribunal for reconsideration on 5 occasions. In order to enable a plan review to be undertaken in consultation with HRZI, the NDIA presses the Tribunal to make a recommendation for the 2020 Plan to be subject to review under s 48 of the NDIS Act within one month of this decision.
[36] Respondent’s Outline of Post Hearing Submissions, 2 September 2022 at [145].
It is important to distinguish between the Tribunal’s jurisdiction under s 103 of the NDIS Act, the powers of the Tribunal to determine the scope of the proceedings and matters of practical reality or convenience to the parties.
The jurisdiction conferred by s 103 (for the purposes of s 25 of the AAT Act) is in the following terms:
(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
The Tribunal does not have jurisdiction or power to determine if a plan review should be undertaken under s 48 of the NDIS Act, or the timing of such a review. The NDIA’s assertion HRZI’s supports have not been reviewed since her request for internal review is troubling. Following QDKH, the internal reviewer is not limited to considering supports put before them. A participant in the NDIS need only request a review under s 100(2) and is not required to identify the particular supports sought. Under s 33(2) the CEO has power to approve an SPS prepared with the participant. The scope of the internal reviewer’s powers under s 100 is informed by the scope of the power under s 33(2).
The scope of the Tribunal’s review, exercising jurisdiction enlivened by an application pursuant to s 103 of the NDIS Act and s 25 of the AAT Act, is informed by the scope of the internal review power under s 100. The Tribunal must re-exercise the functions and powers of the reviewer and make the correct or preferable decision on the materials placed before it.[37]
[37] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, per Kiefel CJ, Keane and Nettle JJ at [14].
In this case, the internal review was in respect of the decision made by the CEO’s delegate to approve an SPS for HRZI under s 33(2) of the NDIS Act. This is a reviewable decision under s 99 of the NDIS Act:
Reviewable decisions and decision‑makers Item Column 1
Reviewable decision
Column 2
Provision under which the reviewable decision is made
Column 3
Decision‑maker
1 … 4 a decision to approve the statement of participant supports in a participant’s plan subsection 33(2) CEO
As can be seen, the reviewable decision is a positive decision to approve supports.
Under s 100(5), the reviewer exercised powers informed by the scope of the power under s 33(2) and made a decision on the relevant materials then available. Only in this way could the reviewer determine afresh the SPS for HRZI, including supports which were not approved or not considered by the CEO when the reviewable decision was made. The reviewer confirmed the delegate’s original decision.
The Tribunal is required to decide afresh all matters capable of being decided under s 33(2) and, under s 43(1) of the AAT Act, it may exercise all the powers and discretions conferred upon the reviewer for the purposes of the review. Just as the reviewer in this case was required to consider afresh the matters set out in s 33(2), including the reasonable and necessary supports which may be approved for HRZI, so must the Tribunal make the correct or preferable decision under s 33(2) of the NDIS Act on the materials and evidence placed before it.
Subsection 42D(1) of the AAT Act provides for remittal of a decision under review for reconsideration by the decision maker, whereupon the decision maker exercises power under s 42D(2) to affirm, vary or set aside the decision and substitute a new decision. In a case of the present kind, involving approval of an SPS for HRZI, remittal for reconsideration under s 42D(1) is an opportunity for the NDIA to fully reconsider all aspects of the internal review decision and the original decision to approve the SPS under s 33(2) of the NDIS Act. On the NDIA’s submission, the remittals were made for the purpose of ensuring that funding continued pending resolution of the matter in the Tribunal, whereas a plan review under s 48 would facilitate a full review of [HRZI’s] current support needs, not limited to the matters that have been subject of dispute. [38]
[38] Respondent’s Outline of Post Hearing Submissions, 2 September 2022 at [146].
This discloses a narrow conception of the purposes of remittal under s 42D(1) of the AAT Act and a similarly narrow approach to review of an SPS approval decision.
The NDIA asserts the discussion of issues raised during the hearing, in respect of the scope issue and the nexus issue, is, to a large extent, hypothetical, as the Applicant did not seek to avail herself of the opportunity to adduce further evidence in relation to supports.[39] Aside from there being nothing hypothetical about the proper consideration of reasonable and necessary supports that will be funded under HRZI’s participant’s plan, an adversarial approach in which one party is required to adduce materials to prove their case against another party is inapt. Under s 33(1AA) of the AAT Act, the NDIA is obliged to assist the Tribunal to make the correct or preferable decision in the proceedings and under s 33(1AB) both parties are required to assist the Tribunal to fulfil the objective in s 2A of that Act. I note the scope and nexus issues arise from the NDIA’s construction of the legislation in this case and the narrow approach to the conduct of merits review in respect of matters that have been the subject of dispute.[40]
[39] Respondent’s Post hearing Reply Submissions, 16 December 2022 at [3].
[40] Respondent’s Outline of Post Hearing Submissions, 2 September 2022 at [146].
A narrow approach of that kind, being confined to matters in dispute, and an adversarial approach, in which HRZI is required to prove supports, does not align with the principles set out in QDKH or with the provisions for merits review (and related powers) under s 100 of the NDIS Act and relevant provisions of the AAT Act. The Tribunal’s review is not confined to matters in dispute between the parties in respect of particular supports or contested elements of an SPS approval decision under s 33(2) of the NDIS Act.
That said, the proposition only limited relevant material of probative value has been placed before the Tribunal in these proceedings is correct. This is despite the protracted nature of the proceedings and remittal of the decision under review for reconsideration on 5 occasions.
The Tribunal has power to limit the scope of the review by limiting the questions of fact, the evidence and the issues it considers under s 25(4A) of the AAT Act, and exercise procedural powers under s 33. No order was requested or made under s 25(4A) in this case.
Thus, while it is possible for the Tribunal to limit the review to particular supports which are the subject of disputation between the parties, or which have been determined adversely to the participant, the nature of the decision under review is an important and relevant consideration when determining the appropriateness of doing so. The assessment of any particular support may require consideration of other related supports in the context of the person’s particular circumstances, their SGA and their disability support needs when applying the threshold set out in s 34(1).
HRZI raised a question whether, in such circumstances, it is necessary for a participant to produce evidence capable of satisfying the Tribunal each and every uncontested element of the SPS approved by the original decision maker and confirmed by the reviewer is justified and each support is reasonable and necessary.
While, generally, the answer to HRZI’s question is ‘Yes’, there are two issues of practicality to consider.
Firstly, in review proceedings before the Tribunal, parties may make concessions in respect of particular elements of a reviewer’s SPS internal review decision which are not controversial. Even though the Tribunal is not bound by any such concession, the Tribunal may accept a concession where it is satisfied it is reasonable and appropriate to do so in consideration of the applicable law and on the available materials.
Secondly, where parties inform the Tribunal they agree particular supports should or should not be approved and the agreement is reduced to writing and given to the Tribunal, the Tribunal may act upon it. By operation of s 42C(1) and (3) of the AAT Act the Tribunal may give effect to agreement in respect of part of a proceeding without dealing with such matters at a hearing if it is satisfied doing so is within power and appropriate.
In other words, where particular matters are agreed between the parties in a review, the Tribunal has power and procedural flexibility to deal with and act upon the agreement where the Tribunal is satisfied it is appropriate to do so. The argument there is little utility in hearing matters which are not in dispute and are agreed between the parties has some force. Proceeding in such a manner may assist the Tribunal to meet the objectives set out in s 2A of the AAT Act. Nevertheless, the Tribunal must proceed in a proper and fair manner on the materials placed before it. Acceptance of a concession or an agreement between the parties requires formulation of a state of satisfaction about the appropriateness of proceeding in such a manner, and satisfaction requires relevant probative material.
In this case, the parties assert the Tribunal should accept the reasonable and necessary supports which were approved in the primary decision on 24 June 2020 and confirmed by the internal review decision on 20 August 2020, as subsequently extended by operation of the reconsideration decisions on remittal by the Tribunal, including the decision on 31 January 2023 (which is presently before the Tribunal). It was on this basis each party presented their case, without adducing detailed probative materials capable of establishing the supports approved by the reviewer and by the CEO’s delegate at first instance (approved supports).
As will appear, there are some difficulties proceeding in this manner.
Firstly, there is a lack of clarity in respect of HRZI’s disability and the impairment or impairments to which it is attributable. The NDIA did not question HRZI’s present status as a participant in the NDIS and it has not suggested she fails to meet the disability requirements in s 24. Nevertheless, there is only scant relevant material of probative value before the Tribunal.
Secondly, on the present materials, the approved supports, which are described in general terms, and the quantum of funding approved, which is expressed in very specific amounts, cannot be independently ascertained with any particularity, precision or certainty. Simply put, the materials before the Tribunal, including the decision records of the NDIA, are not sufficient to establish these matters. I accept this is because the parties ran their cases on the assumption uncontested and previously approved supports would not be subject to further examination, proof or findings. The submissions made during and after the hearing, and the matters set out in Statements of Facts, Issues and Contentions on the basis of which each party prepared and presented their case, bear this out.
The question in these circumstances is whether it is appropriate to act upon the parties’ agreement and to accept, as a baseline, the supports approved by the reviewer (in confirming the original decision of the CEO’s delegate) are reasonable and necessary supports the Tribunal should affirm.
While it is difficult to assess the efficacy of supports funded under HRZI’s 2019 Plan, previous decisions made by the NDIA to continue funding for reasonable and necessary supports under participant plans for HRZI suggest she continues to have a disability which qualifies her as a participant in the NDIS. The available materials relevant to HRZI’s disability and to her ongoing disability support needs in the context of the matters set out in s 33(5) and s 34 of the NDIS Act, including her SGA and her unchallenged evidence, broadly align with the matters agreed between the parties.
Subject to subsequent findings in respect of supports which are in contention, I am satisfied the Tribunal has power to act in accordance with the agreement of the parties and it is appropriate to do so in the particular circumstances of this case.
Nexus issue
The difficulties to which I have alluded in respect of HRZI’s disability sharpen the point of the dispute between the parties about the NDIA’s submission the provision or funding or supports is limited to impairments which meet the thresholds set out in disability requirements.
HRZI asserts, as a participant in the NDIS she is entitled to funding for reasonable and necessary supports in respect of her support needs and in order to achieve her goals and aspirations. The funding of supports, she argues, is not limited to impairments the NDIA has accepted meet the disability requirements. She contends the statutory scheme established under the NDIS Act proceeds on the basis reasonable and necessary supports may be provided or funded in relation to her disability, and this is not confined to any particular ‘impairment’.
In HRZI’s submission, the term ‘supports’ should be construed broadly and consistently throughout the NDIS Act according to its meaning as inclusively defined in s 9 and in ordinary usage. She asserts a narrow construction is not consistent with the objectives and principles of the NDIS Act, or the way in which supports are dealt with in different sections of the NDIS Act.
HRZI maintains s 13 and s 21(2) allow for supports to be provided to people with disability who are not participants in the NDIS and who do not therefore meet the disability requirements in s 24. For this reason, HRZI argues, the principle for which the NDIA contends, that supports must relate to impairments on which the participant qualified for access to the NDIS, cannot be sustained. The legislation, so the argument goes, evinces no intention for decision making under Part 2 of Chapter 3 to be referable to the threshold of ‘impairment’ which is applicable under s 24. Had the Parliament intended such a nexus, HRZI asserts it could have done so, but instead of importing any such limitation on supports, provision is made in s 35(1)(b) for rules to be made in respect of reasonable and necessary supports or general supports that will not be provided or funded under the NDIS.
HRZI submits the qualification of NDIS amounts by reference to a participant’s impairment for the purposes of the compensation recovery provisions in s 106(1)(b) and 107(1)(b) would be otiose if the construction contended for by the NDIA were to be accepted. There would be no cause for the qualification, HRZI asserts, as, under the NDIA’s construction of supports, NDIS amounts would only be payable in respect of impairments which meet the disability threshold in s 24, rendering the qualification and the words ‘participant’s impairment’ in s 106(1)(b) and s 107(1)(b) with no work to do.
Further difficulties arise in respect of the Supports Rules, HRZI alleges, as the NDIA’s construction conflates ‘disability’ and ‘impairment’ such that the bar on providing or funding a support if it is not related to the participant’s disability under rule 5.1(b) would either be redundant, or it would not sit comfortably with the distinction drawn in the NDIS Act between ‘disability’ and ‘impairment’, which are not used interchangeably. The distinction drawn was the subject of detailed consideration by Mortimer J in Mulligan v National Disability Insurance Agency (Mulligan),[41] and in HRZI’s submission, an impairment is one element of disability, whereas disability refers to a person’s impairments as well as to social barriers they face in connection with the impairments. The preferred conception of disability the NDIS Act embraces is, HRZI suggests, broad and not limited to impairments that satisfy the criteria in s 24. This, HRZI argues, is consistent with the conception drawn by the Productivity Commission report on Disability Care and Support (Productivity Commission Report), which refers to disability as the interaction of long-term physical, mental, intellectual or sensory impairments, and attitudinal or environmental barriers that ‘hinder … full and effective participation in society on an equal basis with others’,[42] and Article 1 of the Convention on the Rights of Persons with Disabilities, to which Mortimer J referred in Mulligan.
[41] [2015] FCA 544.
[42] Report No 54, 31 July 2011 at 94 and 98.
To illustrate the point, HRZI takes the example of a person with a neurological impairment, such as multiple sclerosis, who requires psychological supports. In HRZI’s example, under the construction preferred by the NDIA, the psychological supports could not be funded if the permanent impairment was damaged neurological function. HRZI argues, as a matter of practicality, it would not be possible to ringfence supports on the basis of accepted permanent impairment as a person’s impairments may interact with each other and supports may relate to more than one impairment.
In the NDIA’s submission, the terms ‘disability’ and ‘impairment’ are integrally connected in Chapter 3 and the Support Rules, which were expressly made for the purposes of s 33 and s 34.
The NDIA asserts a ‘support’ is assistance or care given to aid or assist something: it is a practical description of the means by which a person with disability is assisted[43]. For the purposes of the NDIS Act, the NDIA argues, a support is a thing that gives aid or assistance to address an impairment that satisfies the criteria for accessing the NDIS under s 24 or s 25 of the NDIS Act. The argument runs on several legs.
[43] McGarrigle at [88].
The NDIA asserts a person only meets the access criteria in s 21(1) if they have an impairment of a particular kind, namely one that is permanent for the purposes of s 24(1)(b) and s 25(1)(a)(i) and (ii). Consequently, the NDIA argues, the NDIS Act creates a scheme which may only be accessed by a subset of persons with disability and the purpose of s 24 and s 25 is to identify that specific, limited cohort.
The NDIA notes the CEO’s duty to facilitate preparation of a participant’s plan under s 32 is triggered by the person satisfying the access criteria for acceptance into the NDIS. The temporal connection between these events, the NDIA argues, supports a reading that a positive result from Part 1 in Chapter 3 is intended to shape what then occurs in Part 2 of Chapter 3. A participant’s plan made under s 32 and s 33, so the argument goes, is intended to address the impairments which are found to meet the statutory thresholds in s 24 and s 25. This is supported by a sequential reading of Chapter 3 in the ordinary way, where the provisions of Part 2 must be read in light of the preceding provisions in Part 1.[44]
[44] Patman v Fletcher’s Fotographics Pty Ltd (Patman) (1984) 6 IR 471 at 474-475 (Priestly JA, Mahoney JA agreeing).
The NDIA asserts the matters about which a decision maker must be satisfied in s 34(1)(b) and (d), in respect of assistance to undertake activities to facilitate social and economic participation and the effectiveness and benefit of the particular support, must be construed in a manner which gives them practical effect.[45] As the question of assistance or benefit derived from a support is relative, and to some extent this turns on an assessment of the person’s functional capacity, in order to have any practical effect, the NDIA asserts the assessment in respect of reasonable and necessary supports is directed to impairments which satisfy s 24 or s 25.
[45] Minister for Resources & Anor v Dover Fisheries Pty Ltd 9 (Dover Fisheries) [1993] FCA 366 at [33].
A distinction is to be drawn, the NDIA asserts, between providing supports in the context of a participant’s plan under Chapter 3, and the provision of general supports and assistance under Chapter 2. In the NDIA’s submission, the former is relevant to the Tribunal’s review, whereas the latter, dealing with forms of support not related to participant plans, is irrelevant to the question arising in this review. The path by which a person may become a participant in the NDIS, including under s 21(2), does not advance the matter in the NDIA’s submission, as reasonable and necessary supports under s 33 and s 34 are not determined in reference to an impairment decision alone.[46] The NDIA argues the approval of supports is a matter for evidence: the supports must refer to an impairment which has previously been found to satisfy s 24 or s 25, or to an impairment which may presently be established by evidence to satisfy those thresholds. Unless the thresholds in s 24 and s 25 are met, the NDIA argues, a support cannot be approved under an SPS for a participant.
[46] Post hearing reply submission for the Respondent, 19 December 2022 at [9].
The definition given to term ‘participant’s impairment’ in s 9(1) is expressly in respect of the disability requirements and the early intervention requirements and this, the NDIA asserts, indicates the NDIS Act is concerned only with impairments which meet those thresholds under s 24 and s 25. The NDIA relies on previous Tribunal decisions,[47] including VGCP and National Disability Insurance Agency (VGCP).[48] The NDIA submits in VCGP the Tribunal held that supports are paid in respect of impairments that meet the disability requirements in s 24 or the early intervention requirements in s 25. The NDIA refers to the provisions for recovery of ‘NDIS amounts’ in s 106 and 107 and suggests it would be irrational for the Parliament to authorise recovery of NDIS amounts in respect of a participant’s impairment which satisfies s 24 or s 25, but not authorise recovery of any NDIS amounts paid in respect of other impairments. A construction which allows a person to obtain a windfall gain, being paid twice for the same support, cannot have been intended, the NDIA argues, and it may be avoided by reading supports authorised under s 33(2) as limited to supports in respect of an impairment that satisfies the definition of participant’s supports in s 9(1) and the thresholds in s 24 or s 25.
[47] It is noted the NDIA refers to a Tribunal decision which is subject to confidentiality orders under s 35 of the AAT Act which preclude publication or other disclosure. For this reason, the decision will not be considered further.
[48] [2020] AATA 5107.
The NDIA submits, the lifelong status of a participant in the NDIS reflects the thresholds on which the person was granted access, specifically in respect of permanency of impairments and the likelihood the person would require support under the NDIS for their lifetime. In the NDIA’s submission, the NDIS does not contemplate the provision of supports to a person who has an impairment which is not permanent, and the NDIS Act should not be read as authorising the provision of support for a non-permanent impairment simply because the person happens to suffer from some other, wholly unrelated, impairment which is permanent and qualifies their access to the NDIS.
The NDIA asserts a construction which allows for the provision of supports to a participant for any impairment would lead to inequitable or arbitrary outcomes. In order to exemplify the inequitable result, the NDIA compares a person with a depressive illness whose illness is not sufficiently severe or permanent to meet the disability requirements in s 24 with a participant who has a permanent impairment and develops a wholly unrelated depressive illness. The first person would not be entitled to supports under the NDIS for their depressive illness whereas, the NDIA argues, under the construction contended for by HRZI, the second person, the participant, would be entitled to supports for their depressive illness. Parliament, the NDIA contends, could not have intended a person’s entitlements to support for such an illness would hinge on whether they had become a participant for some wholly unrelated reason. An arbitrary result of that kind, so the argument goes, should not be entertained and a construction which provides consistency and fairness should be preferred.[49]
[49] Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky) [1998] HCA 28, per McHugh, Gummow, Kirby and Hayne JJ at [69].
It is the NDIA’s submission the statutory objective of financial sustainability of the NDIS supports a construction which promotes operation of the NDIS in a financially sustainable way, whereby the provision of supports is limited to persons with impairments of a particular kind, namely an impairment which satisfies s 24 or s 25. A construction of this kind, the NDIA argues, is consistent with rule 5.1(b) in the Supports Rules and the construction adopted by the Tribunal in McLaughlin v National Disability Insurance Agency (McLaughlin)[50] and, furthermore, it will ensure the funding of supports is only used to address the kinds of serious disabilities that the NDIS was intended to address.[51]
[50] [2021] AATA 496
[51] Outline of Post Hearing Submissions for the Respondent, 2 September 2022 at [61].
The NDIA submits the term ‘disability’ as it is used in rule 5.1(b) does not refer to any disability, whether or not it would justify access to the NDIS, but it refers to a disability that is attributable to an impairment of a particular kind, as set out in s 24 or s 25. The NDIA accepts rule 5.1(b) is not limited to a disability by virtue of which a participant was granted access to the Scheme but extends to any disability which would justify such access.[52] To the extent the Tribunal’s decision in McLaughlin suggests a broader construction, which the NDIA asserts was not the point being made by the Tribunal, it should not be followed.
[52] Ibid, at [75].
Considering these extensive and closely argued submissions, it is necessary to consider the correct approach to construing the NDIS Act. This was addressed most recently in National Disability Insurance Agency v Foster (Foster)[53], in which Derrington J, with whom Katzmann and Perry JJ agreed, said;
30 The principles applicable to questions of statutory construction, which require consideration of the text, content, and purpose, are well established [Citations omitted].
31 In The Bay Street Appeal[54], the Chief Justice expressed the approach in this way, at [4]:
[4] … The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. [Citations omitted]
[5] There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 [2019] HCA 35; 373 ALR 214 at 223-225 [31]-[37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985. [Citations omitted]
[53] [2023] FCAFC 11, per Derrington J, with whom Katzmann and Perry JJ agreed, at [30]-[31].
[54] Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192.
Section 15AA of the Acts Interpretation Act 1901 (Interpretation Act) is in the following terms:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
Furthermore, the NDIS Act, generally, and the provisions of Parts 1 and 2 of Chapter 3, in particular, have a remedial and beneficial purpose. While it has been said remedial and beneficial legislation should be accorded a "fair, large and liberal interpretation", rather than one which is literal or technical, and if a particular section is ambiguous, it should be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve, attention must be squarely focussed on the meaning of the words used as to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used.[55] The provisions which are relevant to the matters raised by the parties in respect of the provision or funding of supports should, therefore, be given as generous a construction as the actual language of those provisions permits.[56]
[55] New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50, per French CJ, Kiefel, Bell and Keane JJ at [32]-[33].
[56] Legal Services Board v Gillespie-Jones [2013] HCA 35, per French CJ, Hayne, Crennan and Kiefel JJ at [55].
The NDIA’s assertion the NDIS Act should be read sequentially, in the ordinary way in which a document is read, whereby the processes in Part 1 of Chapter 3 inform the processes in Part 2 of that Chapter, must be treated with some caution. Like many statutes, the NDIS Act does not proceed in the way of a narrative, rather it is comprised of Parts and Chapters dealing with particular but inter-related aspects of the legislative scheme it establishes. No doubt, the principles of construction require the NDIS Act to be read as a whole with attention to the sequence in which it was drafted.[57] Importantly, each provision must be read in the statutory context in which it is placed, with regard to what precedes it and what follows it.[58] The requirement for caution arises when this principle is applied more broadly to entire Parts of the legislation. This might be appropriate where the legislation sets out a step-by-step approach or a methodology in respect of the subject matter,[59] but that is a matter for careful consideration.
[57] Patman, per Priestly JA at [69].
[58] Ibid.
[59] Rehabilitation Medicine Australia Pty Ltd v N I B Health Funds Ltd (No 2) [2020] FCA 1761 at [28].
As I have said, HRZI revised her request for sex therapist support to the funding for physical therapy and adaptive technology in order to engage in sexual relations and to improve her health in order to have a child. HRZI is seeking funding of $150,000 for supports of this kind.[116]
[116] Exhibit 1, A1, page 7.
HRZI asserts she underwent tubal ligation in 1995 and, following a burn injury in 2018, she is not able to use her own eggs. HRZI contends tubal ligation complications have resulted in permanent disability. The best and safest option for her to achieve her goal of having another child, she argues, is for the NDIS to fund an in vitro fertilization (IVF) procedure relying on sperm and egg donors. She is seeking an amount of $40,000 to fund these supports.[117]
[117] Ibid, pages 5-6.
The NDIA submits the additional support HRZI is seeking cannot be funded under the NDIS as it does not align with HRZI’s SGA and the available evidence does not establish it is related to HRZI’s disability. The NDIA argues, furthermore, the procedure is best considered as a health-related support which, under rule 7.7 of the Supports Rules, cannot be funded under the NDIS.
The matter is to be decided under s 33(5) and s 34 of the NDIS Act and the applicable Supports Rules.
HRZI’s evidence in respect of tubal ligation complications is not corroborated by any probative medical materials before the Tribunal.
The supports HRZI is seeking are described at a fairly high level of generality, without particularity supported by probative materials. While one can understand the references to IVF in general terms perhaps, HRZI’s request on 22 June 2022 for other therapy, and adaptive technology to build capacity and function in order to engage in a sexual relationship is more difficult to comprehend without supporting information.
It may be accepted HRZI aspires to engage in intimate and sexual relationships.[118] The related supports she is seeking, in respect of trauma counselling, physiotherapy and adaptive technology to build capacity and function to engage in a sexual relationship, may well assist her to pursue her stated goal of increasing community participation and maintaining physical and mental well-being. Nevertheless, the evaluative exercise and related fact finding for the purposes of s 34(1) of the NDIS Act requires a level of detail, supported by probative materials. The high level of generality of HRZI’s request makes this task difficult.
[118] Ibid, page 7 and A18, page 68.
On the present materials, and without more, I am unable to be satisfied of the value for money consideration in s 34(1)(c). Additionally, there is no medical or psychological evidence on which to assess, for the purposes of s 34(1)(d), the likelihood the supports being sought would be effective and beneficial for HRZI, having regard to current good practice.
That being so, the additional supports HRZI is seeking in relation to sexual function and intimate relationship capability are not presently made out as reasonable and necessary supports.
I note there is provision for capacity building supports from allied health professionals in respect of Improved Daily Living (an amount of $11,639.40 for skills development, training, assessment and therapy) and Health and Wellbeing (an amount of $3,339.80 for assistance with mobility and strength). The supports HRZI is seeking in respect of physiotherapy and other therapy, as well as adaptive technology, to assist build her capacity and function in respect of sexual and intimate relationships may be appropriately funded within these provisions.
With regard to HRZI’s request for IVF support to have a child, this is not made out.
Ms Black discusses HRZI’s desire to have a child as right in the context of her disabilities and past trauma. Building on this point, HRZI has provided voluminous material in respect of her rights. It is Ms Black’s opinion HRZI requires support to assist her re-claim her sexual expression and to address past trauma as Her children were abducted.[119] Notwithstanding this, Ms Black does not recommend related supports, such as those HRZI is seeking, should be provided or funded under the NDIS. There is no psychological, psychiatric or other medical evidence addressing these matters.
[119] Exhibit 1, A18, page 68.
In the particular circumstances of this case, having regard to rule 5.1 in the Support Rules, I am not persuaded the IVF and related procedures HRZI is seeking are related to her disability. This is not a matter of rights, rather it is a matter of evidence.
Furthermore, HRZI’s aspiration to have another child is not specified or alluded to in her SGA included in the 2020 Plan. An SGA prepared under s 33(1) cannot simply be ignored or stepped around as it is a critical instrument for the purposes of s 37(1). Furthermore, a decision maker must be satisfied the support sought will assist the participant to pursue the goals, objectives and aspirations set out in their SGA.
On the available evidence, I am not satisfied support for HRZI to have another child will assist her to pursue the goals, objectives and aspirations set out in her SGA. HRZI was born in 1970 and there is not sufficient material to establish engaging in an IVF program will assist her to pursue her stated goals.
The present materials are not sufficient to enable a proper evaluative assessment for the purposes of s 34(1)(b), (c) and (d). That being so, I am unable to be satisfied the thresholds in those provisions are met.
With regard to s 34(1)(f), I am not persuaded IVF and related procedures HRZI has alluded to in her request are most appropriately funded under the NDIS. The procedures for which she is seeking support are more related to health considerations than her disability and, in that regard, they are more appropriately provided or funded under support services of the Commonwealth Medicare program.
Furthermore, it is necessary to consider the terms of rule 7.4 and relevant parts of rule 7.5 of the Supports Rules, as follows:
7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5 The NDIS will not be responsible for:
(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
…
As can be seen, the NDIS is not responsible for the clinical treatment of health conditions or medical specialist services. HRZI’s reproductive issues and her request for IVF and related medical procedures are within the terms of rule 7.5 (a) and (b). Presently, there is not sufficient material to make any different finding.
Legal and administration
HRZI is seeking legal support to help with getting custody of 3 of my grandchildren and seeking compensation where I am entitled to compensation. She asserts her history of institutional abuse and complex trauma is such that legal matters are traumatising, and the provision of legal support will prevent further functional decline and impairment. HRZI is seeking $150,000 for legal support.
The NDIA contends this cannot be funded under the NDIS.
In the circumstances, I agree. HRZI’s assertions are not supported by relevant probative material.
I am not satisfied the legal support HRZI is seeking is related to her disability. Rule 5.1(b) bars funding in such circumstances.
With regard to the requirements of s 34(1), I am not satisfied the legal support sought will assist HRZI to pursue the goals, objectives and aspirations set out in her SGA in the 2020 Plan. It is not presently established the legal support will assist HRZI to undertake activities, so as to facilitate her social and economic participation. The available materials are not sufficient to enable a proper evaluation of the value, effectiveness and benefit thresholds in s 34(1)(c) and (d). And finally, legal support of this kind is not most appropriately funded under the NDIS and it is more appropriately funded under legal support services provided by the Commonwealth, States and Territories, including Legal Aid.
Other core, capital and capacity building supports
HRZI has made requests for many supports ancillary to and associated with the primary requests she has made which were the subject of evidence at the hearing and detailed submissions of the parties. These include the additional supports she requested on 10 April 2022 (see paragraph [23] above), which were subsequently revised by her in writing on 19 July 2022.
The additional supports were not raised, ventilated or pressed at the hearing. It is possible some of the additional supports she referred to might be accommodated within the approved supports in paragraph [191] above. In any event, there is not sufficient relevant material on which to make any concluded findings about the additional supports HRZI referred to on 10 April 2022. I will not proceed to consider them further.
I note if HRZI wants to press for additional supports in the context of changed circumstances or disability support needs, she may seek a variation or reassessment of her plan.
Management of funding
At least in part, HRZI wants to resume self-management of the funding of NDIS supports. She asserts she has never over-spent her approved NDIS funding and she has used the funding in relation to her disability. She argues any past confusion about NDIS funding has always been the result of inconsistent information from NDIA planners, Plan Managers and NDIA staff.[120]
[120] Exhibit 3, Tab 13 at [6].
HRZI finds dealing with plan managers traumatic and justifying each and every invoice is very time consuming and stressful.[121] NDIA management is not an option, she asserts, as she uses non-registered providers for many supports, including her physiotherapist and osteopath.
[121] Ibid.
The NDIA submits HRZI has an inherent misunderstanding of supports funded under the NDIS and how funding should be managed. In the NDIA’s submission, HRZI plan should be NDIA-managed or, at least, it should remain plan-managed.
The matter is to be decided for the purposes of s 33(5) and Rules made for those purposes, namely the Management Rules. Importantly, the management of the funding for supports under participant’s plans is governed by Div. 3, Pt 2, Ch 3 of the NDIS Act. The terms of s 43 and s 44 of the NDIS Act which relevantly apply must be adhered to.
While the terms of s 33(5) must be considered together, in the present circumstances particular attention is drawn to the following paragraphs:
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
…
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
Additionally, the objective set out in s 3(1)(e) is of particular relevance, and this is reflected in the terms of paragraph 1.2 of the Management Rules.
Sections 43 and 44 are in the following relevant terms:
43 Choice for the participant in relation to plan management
(1) A participant for whom a plan is in effect or is being prepared may make a request (a plan management request):
(a) that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or
…
(2) If a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (3) to (6).
(3) If:
(a) a participant makes a plan management request covered by paragraph (1)(a); and
(b) subsection 44(1) applies in relation to the participant;
the statement of participant supports in the plan must provide for the funding for supports under the plan:
(c) if paragraph 44(1)(a) applies—to be wholly managed by the Agency; and
(d) if paragraph 44(1)(b) applies—to be managed by the Agency to the extent covered by that paragraph.
...
44 Circumstances in which persons must not manage funding
Participant
(1) For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:
(a) the participant is an insolvent under administration; or
(b) the CEO is satisfied that the participant’s management of the funding for supports under the plan to a particular extent would:
(i) present an unreasonable risk to the participant; or
(ii) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant.
…
(3) The National Disability Insurance Scheme rules may prescribe criteria the CEO is to apply and matters to which the CEO is to have regard in considering whether any of the following would present an unreasonable risk to the participant:
(a) a participant managing the funding for supports under the plan;
(aa) a registered plan management provider managing the funding for supports under the plan;
(b) a plan nominee managing the funding for supports under the plan.
HRZI has made a plan management request in the following terms:
I would like to be partial self/plan managed. I would like to manage my core supports. I am happy for capacity building supports to be plan managed. I would like my support coordination to be plan managed.
By operation of s 43(2), effect must be given to this request unless s 43(3) applies. As HRZI is not insolvent, s 43(3)(b) and s 44(1)(a) are not applicable. The remaining question is whether s 44(1)(b) and s 43(3)(d) are applicable.
Rule 3.5 of the Management Rules states a participant will not be able to manage the funding for supports under their plan to a particular extent if the CEO is satisfied that this would present an unreasonable risk to the participant. Matters to which regard must be had when considering if there is an unreasonable risk are set out in rule 3.8, with reference to rule 3.9:
3.8 Otherwise, the CEO is to have regard to the following:
(a) whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan;
(b) the vulnerability of the participant to:
(i) physical, mental or financial harm; or
(ii) exploitation; or
(iii) undue influence;
(c) the ability of the participant to make decisions;
(d) the capacity of the participant to manage finances;
(e) whether a court or a tribunal has made an order under Commonwealth, State or Territory law under which the participant’s property (including finances) or affairs are to be managed, wholly or partly, by another person;
(f) whether, and the extent to which, any risks could be mitigated by:
(i) the participant’s informal support network; or
(ii) any safeguards or strategies the Agency could put in place through the participant’s plan.
3.9 The safeguards referred to in paragraph 3.8(f)(ii) could include, for example:
(a) setting a shorter period before the participant’s plan is reviewed; or
(b) setting out regular contacts between the Agency and the participant; or
(c) providing funding for supports (for example, budgeting training) that would assist the participant to manage their own plan.
HRZI self-managed the funding of supports under the 2019 Plan.[122] It appears the NDIA was concerned the allocated funds were expended well before the review date for the Plan and the allocated budget for core supports was over-expended.[123] It also appears there are concerns HRZI expended funds on activities and items not related to her disability, such as glass-blowing and clothing.[124]
[122] Exhibit 1, A3, pages 23-25.
[123] T2, folio 16.
[124] T3, folio 19.
The Planning Conversation Notes on 24 June 2020 record HRZI was seeking, among other things:
(a)a stereo for her car;
(b)a sewing machine and overlocker;
(c)a lap top;
(d)an upgraded car; and
(e)repairs to her motor home.[125]
[125] Ibid, folio 18.
Issues arose in April 2022, in respect of reimbursements or payments HRZI was claiming under her NDIS funding.[126] The issues related to claims in excess of funding allocations with the daily activities component of HRZI’s capacity building budget, and a claim for transport funding outside the scope of the allocated budget. On 22 April 2022, HRZI’s plan manager raised concerns over claims HRZI was pursuing for funding under her NDIS Plan, including:
A reimbursement submitted this week for $1,850 with an ‘invoice’ [HRZI] has created and stated as “Community participation Group activities” included an ABN for a pet boarding business and included 600 km of transport, when the establishment is located within 15km from her house…
We need your assistance please to speak directly with [HRZI] to reach agreement on what she can and cannot claim…[127]
[126] ST1 and ST2.
[127] ST3, folio 145.
HRZI disputes these matters.
A large volume of records produced by HRZI’s plan manager under summons were marked for identification and labelled ID1 during the hearing.
The NDIA asserts the history of difficulties under the previous plan management arrangement is such that HRZI’s plan should be managed by the NDIA. HRZI disputes this on grounds she relies on non-registered providers. I accept HRZI should be supported to exercise choice in respect of providers she uses. On balance, I am not persuaded NDIA management of funding for supports under her Plan is preferred at this time.
It is very clear HRZI has encountered issues of scope and quantum in the management of NDIS approved funds. To my mind, were she to manage the core components of NDIS funding (an amount of $103,814.58 was previously approved), material harm could result if the allocated funds were to be expended well ahead of the scheduled plan reassessment date, whereafter HRZI would not be able to access funding for supports she requires. Additional harm might result if, under HRZI’s management, funds are expended without authority, not in accordance with her Plan and contrary to s 46(1), debts may be raised against her under s 182 of the NDIS Act. This risk is squarely within the terms of rule 3.8(a) of the Management Rules and I am satisfied it amounts to an unreasonable risk.
Furthermore, there is a real question about HRZI’s capacity to manage finances.
I note the NDIA’s proposal in respect of funding training support for HRZI.[128]
[128] Statement of Issues, Facts and Contentions of the Respondent, 8 February 2022 at [101].
In order to mitigate these risks and to assist HRZI to develop capabilities to manage the funding of supports under her Plan it is appropriate to implement safeguards in accordance with rule 3.9(b) and (c), namely:
(a)regular contact, at least monthly, between HRZI and the Agency in respect of the management of funding for supports under HRZI’s Plan; and
(b)two hours per month financial management training support to be funded for HRZI to develop her capability to manage her own plan.
In the circumstances, it is not appropriate for HRZI to self-manage the funding of support under her Plan at this time.
In consideration of the previous extensive disputation between HRZI and her plan manager over support funding provisions, invoices and claims for payment, I am not persuaded NDIA-management of HRZI’s funding for supports is preferred. For this reason, I am satisfied the funding of supports under her Plan should remain plan-managed, at least until HRZI develops sufficient capabilities to resume self-management of funding for supports under her Plan.
Plan reassessment
HRZI asserts her plan should run for at least 12 months.
The NDIA agrees a 12-month reassessment date is appropriate in the circumstances.
I am satisfied HRZI’s plan should be reassessed 12 months from the date of this decision. I do not accept a longer period of 24 months can be justified at this time. The question of HRZI’s capacity to manage the funding of supports under her Plan should be reassessed in 12 months and, should there no longer be an unreasonable risk to her, the plan management arrangement should be changed in accordance with the principle HRZI should manage her plan to the extent she wishes to do so.
Conclusion
The parties agree:
(a)HRZI has disability attributable to physical impairments as well as impairments attributable to psychiatric conditions, and she continues to meet the disability requirements; and
(b)the supports approved in the reconsideration decision on 31 January 2023 are reasonable and necessary.
The additional supports HRZI is seeking are not made out on the materials before the Tribunal. To the extent I have discussed, some elements of these additional supports may be accommodated with support funding provisions already approved. Otherwise, the additional supports she is seeking are not established to be reasonable and necessary supports.
There is an unreasonable risk to HRZI should she self-manage the funding of supports under her Plan at this time. This risk can be mitigated by regular contact between HRZI and the NDIA and by the provision of financial management training support over the next 12 months. Within that period, on an interim basis, HRZI’s plan should remain plan-managed.
The plan should be reassessed in 12 months.
The NDIA suggests a plan review under s 48 would be appropriate to enable a full review of HRZI’s circumstances, disability, impairments and related disability support needs. This is not a matter for the Tribunal to determine. Nevertheless, in consideration of the paucity of relevant probative materials in this case, it may be desirable for the CEO to reassess HRZI’s plan and, in that context, to exercise power to obtain additional relevant information. As this matter was not agitated during the hearing, and HRZI has not expressed any view about it, I will go no further with it.
Decision
The reconsideration decision dated 31 January 2023 is affirmed.
304. I certify that the preceding 303 (three hundred and three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
................[SGD]..........................
Associate
Dated: 24 March 2023
Dates of hearing:
4 – 5 August 2022
Date final submissions received:
16 December 2022
Date final reconsideration decision received:
13 February 2023
Applicant:
In person
Advocate for Applicant:
Ms Shaana Dekker, People With Disability Australia
Counsel for Respondent:
Ms Reg Graycar
Solicitor for Respondent:
Ms Naoimh Donaghy, Australian Government Solicitor
4
16
0